Karen Pearson and Rich Orman, two of the prosecutors in the murder case against James Holmes, walk toward the courtroom. Veteran prosecutor Daniel Zook will soon join them. (Hyoung Chang, The Denver Post)

When announcing the hiring of prosecutor Daniel Zook on Wednesday, the 18th Judicial District Attorney’s office made sure to mention prominently his expertise in death-penalty cases.

“Dan is the most experienced death penalty prosecutor in the state of Colorado and a national expert on these cases,” 18th Judicial District DA George Brauchler said in a statement, which came in a press release headlined “Top Colorado Homicide Prosecutor Dan Zook Hired by Eighteenth Judicial District Attorney George Brauchler.”

The highlighting is understandable given that Zook is about to assume a chair in what could become the most closely watched death-penalty prosecution in state history. Brauchler hasn’t yet said whether he will seek a death sentence against accused Aurora movie theater killer James Holmes, whose case Zook will take on. But Zook’s hiring is a good window into Brauchler’s thinking.

Zook’s history of death-penalty prosecutions, though, offers another window — into how complicated and difficult such cases are. Zook has prosecuted four capital cases and won a death sentence in one of them. But none of the people Zook prosecuted has been executed or is currently on death row.

In short, the four prosecutions show there is no such thing as an easy death-penalty case in Colorado.

There was never much of a chance that Tuesday’s hearing in the Edward Montour death penalty case was going to be average.

Montour’s attorneys were arguing a somewhat uncommon application of the U.S. Supreme Court case Batson v. Kentucky. In that case, the Court found it is unconstitutional to strike potential jurors from a jury pool based on race. Montour’s attorneys applied that reasoning to change-of-venue decisions and argued that, if the prosecution moved Montour’s case from Lincoln County to Douglas County to get a more favorable racial or socioeconomic makeup of the whole potential jury pool, that is also unconstitutional.

Douglas County District Judge Richard Caschette has yet to make a decision on the argument, meaning the debate is simmering. It hit full boil Tuesday afternoon, though.

To wit:

• The defense attorney tried to put the lead prosecutor on the witness stand and cross-examine him.
• The prosecutor began objecting so vehemently to questions that the judge scolded, “I can handle this.”
• The judge blasted the defense attorney for suggesting a previous judge on the case was “buddies” with the prosecutor.

Nathan Dunlap, Colorado’s longest-serving death-row inmate, is down to his last hope in the final appeal he is guaranteed to get.

Dunlap’s attorneys are currently working on a petition to the U.S. Supreme Court asking the nation’s highest court to throw out Dunlap’s death sentence. That move comes because last month the 10th Circuit Court of Appeals denied a petition to reconsider its earlier decision rejecting Dunlap’s appeal. When the full slate of active 10th Circuit judges was polled on whether to re-hear the case, no one spoke in favor of doing so, according to an order issued June 18.

Dunlap’s lawyers argued before a panel of 10th Circuit judges in March that Dunlap’s sentence should be thrown out because his trial attorneys didn’t adequately present evidence that Dunlap may be bi-polar. His current attorneys said that evidence may have been enough to convince at least one juror to refuse to sentence Dunlap to die.

A lawyer for the Colorado Attorney General’s office countered that Dunlap’s trial attorneys made a smart legal calculation to keep that evidence from the jury because of reports suggesting that Dunlap was faking mental illness at least some of the time if not all the time. Introducing evidence of mental illness also would have opened the door for prosecutors to introduce evidence that Dunlap bullied staff and patients at the state mental hospital during an evaluation. The 10th Circuit panel agreed.

The appeal always faced narrow odds for success at the Denver-based appellate court. The court, which is one rung below the U.S. Supreme Court, has decided only about one in four death-penalty appeals in favor of the inmate over the past decade, according to a Denver Post analysis of court decisions. Of the 42 death-row inmates in that span who have so far had their appeals ruled on by the court, 25 have since been executed. Nine more remain on death row awaiting execution.

The ratio is typical of what University of Oklahoma law professor Randall Coyne* says is the even-handed reputation of the court on death-penalty matters. The 10th Circuit, Coyne said, isn’t seen as a rubber stamp for deaths sentences, but it also isn’t a frequent blocker of them.

“The 10th Circuit’s reputation is that of a moderate court,” Coyne, an expert on capital punishment, said. “They tend to be middle of the road.”

But is the state breaking the law by not having that drug on hand already?

State law says prison officials should “at all times have in preparation all necessary implements requisite for carrying into execution the death penalty by means of administration of a lethal injection.”

Asked about the law, Colorado Attorney General John Suthers seemed unconcerned, saying he is confident the state is within the law by not keeping a constant supply of the drugs.

But Lisa Cisneros, the executive director of Coloradans for Alternatives to the Death Penalty, said she reads that language as requiring the state to have the drugs at the ready. However, she notes, the issue has never gone to court.

“It’s never been raised, not that I know of,” Cisneros said.

If it were, it would not be the only time a state has faced scrutiny over its handling of lethal-execution drugs.

On a spring day 153 years ago, a wagon drove John Stoefel to a cottonwood tree near Cherry Creek. Two days earlier, Stoefel had killed his brother-in-law. In a few minutes, about 1,000 people would watch him hanged, the first person in Colorado killed by legally ordered execution.

In the years since Stoefel’s execution, Colorado has put to death 102 others, according to figures compiled by the University of Colorado’s Michael Radelet, who has written the definitive history on the use of the death penalty in Colorado. Most of those executions came in the state’s earlier years — interesting fact: Stoefel was buried in Cheesman Park, when that space was a cemetery — and Colorado has put to death only one killer in the past 45 years.

Dunlap is currently one of three inmates on death row. That number could grow in the near future if Edward Montour, a convicted murderer who then killed a corrections officer, is resentenced to death in a hearing that could commence this year. Montour had previously been on death row but had his sentence overturned because it was delivered by a judge following Montour’s guilty plea to murder. The Colorado Supreme Court ruled that death sentences must be decided by a jury.

LEADING OFF: Ah, the things we (allegedly) do for love. Yesterday, prosecutors announced charges against Sylvia Luckett, 72, who is accused of helping her foster son, Bret Lee Thompson, elude police after he was accused of raping an 8-year-old Denver girl. Thompson was arrested in New Jersey following a nationwide manhunt. As Jessica Fender reports, she’s not the first person to face charges this year for helping a loved one. Three people were convicted after helping a hit-and-run driver who killed a valet. And just last month the girlfriend of convicted killer Travis Forbes was charged with lying during the investigation. Lynn Kimbrough, spokeswoman for the Denver DA, has this advice: “Do the right thing.”

STRIKE ONE: The 10th Circuit Court of Appeals dealt a blow to Nathan Dunlap, the man sentenced to death for killing four people at an Aurora Chuck E. Cheese in 1996 (and who also has one of the more unusual mugshots in our files). The court rejected an attempt to throw out a burglary conviction that prosecutors used to win the death penalty, John Ingold reports. The court says the case was not an example of extreme pre-trial publicity, as Dunlap’s attorneys allege.

STRIKE TWO: A registered sex offender in Jamestown was officially named the lone suspect in the death of 30-year-old Solange Haikkala, who was sexually assaulted and died from blunt-force trauma to her neck on Sept. 10. Thomas Altimus, 35, killed himself three days later, but DNA linked him to the sex assault, authorities said.

STRIKE THREE: The governor of Oregon became the latest governor to halt executions in his state, saying it’s “time for Oregon to consider a different approach,” the New York Times reported. The announcement followed a 4-3 decision by the Oregon Supreme Court to allow the execution of Gary Haugen – convicted of killings in 1981 and 2003 – to go forward.

Comments Off on A.M. Three Strikes: ‘Do the right thing’ or face arrest